Citation Nr: 1300110
Decision Date: 01/02/13 Archive Date: 01/11/13
DOCKET NO. 08-25 692 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right knee scar, claimed as an additional disability as a result of total right knee replacement in August 3, 2004.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
S. M. Marcus, Counsel
INTRODUCTION
The Veteran served on active duty from August 1964 to July 1967.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.
The case was brought before the Board in September 2010 and March 2012, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part.
REMAND
The Veteran underwent a total right knee replacement on August 3, 2004 at the Great Lakes Naval Hospital, which is now a part of the VA Medical Center (VAMC) of North Chicago. He claims during the surgery, the surgeon made a mistake and cut his knee too far causing a second scar on his right knee that otherwise would not be there.
Under 38 U.S.C.A. § 1151, entitlement to benefits are warranted where there is evidence of an additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. Id. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, it must be shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See 38 C.F.R. § 3.361(d).
Here, the August 2004 surgical records note the Veteran's informed consent was given (but the actual consent form is not of record and could not be located). The records further outline the events of the surgical procedure, to include a "complication" described as a "small skin laceration on the lateral aspect of the knee joint." Post-operative August 2004 notes also indicate the skin laceration described as "superficial" with no residuals.
The Veteran maintains that the second right knee scar was due to the surgeon's carelessness and has caused him mental anguish. Psychiatric treatment records were obtained pursuant to the Board's prior remands, but merely show the Veteran's complaints regarding a facial scar, unrelated to the issue on appeal here. He further describes the skin laceration as deep enough to require stitches, whereas the laceration within the medical records is described as well-healed, stable, and superficial. In any case, the Veteran maintains this second scar in and of itself is an "additional disability" caused by the negligence of the August 2004 surgeon.
The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Veteran was afforded a VA examination in November 2007 where the examiner noted a well-healed, stable, superficial right knee surgical scar, which "extended 4 cm." In fact, at the time of the examination the Veteran had also undergone a left knee total knee replacement. The measurements of the left knee scar (where no similar complication occurred) were virtually identical to the measurements of the right knee scar. A "second" scar, moreover, was not noted. Rather, the examiner merely indicated the surgical scar "extended 4 cm."
Within the examination, the examiner did not proffer an opinion as to whether the right knee "extended scar" was the result of fault, error, or carelessness of the VA. The examiner also did not reconcile whether the scar was an event "reasonably foreseeable" given the type of surgical procedure performed. While the examiner did provide a causation opinion, the opinion was in regard to an unrelated disability for medical treatment done at a completely different medical facility. For these reasons, the Board finds the VA examiner's opinion inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).
The medical evidence, moreover, is ambiguous. While surgical records confirm some sort of additional skin laceration occurred during the August 3, 2004 surgery, it is unclear whether the laceration resulted in a second scar, completely separate from the right knee surgical scar, or whether it merely resulted in the surgical scar extending further out. No medical professional, moreover, has resolved whether this additional laceration is a "reasonably foreseeable" complication of the right knee surgery.
Again, the actual consent form in conjunction with the right knee surgery could not be obtained. The August 2004 surgical records reference the consent form and confirm the Veteran was apprised of the risks of surgery and provided his consent for the procedure. It is also noteworthy that the Veteran underwent the same procedure on his left knee in January 2005 and the signed consent form for that procedure is of record. Within the January 2005 signed consent, scars are listed as a reasonably foreseeable complication of the surgery. It is unclear, however, whether an extended surgical scar or a second scar would be "reasonably foreseeable" events.
In light of the inadequacies of the November 2007 VA examination, the missing consent form, and the ambiguities in the medical evidence, a new VA examination is indicated.
The VA should also take this opportunity to obtain any VA outpatient treatment records from March 2012 to the present.
Accordingly, the case is REMANDED for the following action:
1. Obtain VA outpatient treatment records from March 2012 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available.
2. After obtaining the above records to the extent available, schedule the Veteran for an appropriate examination for his claimed right knee scar and "mental anguish," to determine the extent and likely etiology of any condition(s) found.
The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.
Based on the examination and review of the record, the examiner should answer the following questions:
(a) Does the Veteran have additional disability as a result of the August 3, 2004 total right knee replacement, to include the "small skin laceration on the lateral aspect of the knee joint" noted within the surgical report? If the answer is yes, specifically identify the additional disability or disabilities.
The examiner must clarify whether the Veteran has an additional scar (aside from the surgical scar) or an "extended" surgical scar as a result of the laceration. The examiner must also reconcile whether the Veteran has a diagnosis related to the claimed "mental anguish" and whether the diagnosis is attributable to the right knee skin laceration.
(b) If the Veteran does have additional disability due to the August 3, 2004 total right knee replacement, to include the skin laceration, state whether it is at least as likely as not (50 percent probability) that the proximate cause of each additional or aggravated disability was:
(i) due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment; or,
(ii) whether the proximate cause of each additional or aggravated disability was an event which was not reasonably foreseeable.
The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner is to provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
3. After the above is complete, readjudicate the Veteran's claim with specific consideration of 38 C.F.R. § 3.361. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative which includes the text of 38 C.F.R. § 3.361. They should be given an opportunity to respond, before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002).
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).